The European Commission has proposed the adoption of an innovative anti-corruption Directive to address the damaging effects of corruption on society, democracy, the economy, and individuals. Corruption undermines institutions, enables organized crime and foreign interference, and impedes sustainable economic growth. Conservative estimates suggest that corruption costs the EU economy at least EUR 120 billion per year. A Eurobarometer survey in 2022 found that 68% of people in the EU and 62% of companies based in the EU consider corruption to be widespread in their country. The EU Commission, Parliament, and Council have all highlighted the need for more action to combat corruption at both the EU and national levels.
The existing EU legal framework on combating corruption needs to be updated for several reasons. Firstly, the evolution of corruption threats and legal obligations under international law and national criminal legal frameworks require a more comprehensive and effective response from the EU. Secondly, existing instruments such as Council Framework Decision 2003/568/JHA and the 1997 Convention on the fight against corruption involving EU officials or officials of EU Member States are not sufficiently comprehensive. Thirdly, enforcement gaps, obstacles in cooperation between competent authorities in different Member States, and challenges faced by authorities in the Member States need to be addressed. Fourthly, the EU is a party to the United Nations Convention Against Corruption (UNCAC), and the proposed update to the EU legislative framework incorporates international standards binding on the EU as required by the UNCAC. Finally, preventive and repressive mechanisms are both needed to root out corruption, and the proposal includes measures to prevent corruption and promote public trust in addition to criminal repression.
The legal bases for the proposed update to the EU legal framework on combating corruption are Articles 83(1), 83(2), and 82(1)(d) TFEU. Article 83(1) allows for the establishment of minimum rules on the definition of corruption through directives, while Article 83(2) allows for the establishment of minimum rules on criminal offences and sanctions in EU policy areas subject to harmonization measures. Article 82(1)(d) provides for measures to facilitate cooperation between judicial authorities in criminal matters.
The subsidiarity principle is relevant to the proposal because it acknowledges that corruption is a transnational problem that affects all societies and economies. Measures adopted solely at the national or even at the Union level, without taking into account international coordination and cooperation, would have unsatisfactory effects. Due to corruption’s transnational dimension, and taking into account already existing EU legislation, EU-level action is expected to be more effective and efficient and to bring a tangible added value compared to action taken by Member States individually. Thus, the proposal seeks to create a common playing field between Member States, as well as coordination and common standards, contributing to ensuring a broader involvement of all relevant stakeholders in the fight against corruption.
The proportionality principle requires that any action taken by the EU must be limited to what is necessary and proportionate to achieve the intended goals. In this proposal, the principle of proportionality is relevant because it ensures that the new Directive is not overly burdensome on Member States and that the measures taken are commensurate with the objective of efficiently preventing and combating corruption, as well as implementing international obligations and standards. The proposal takes into account the UNCAC requirements, which include the criminalisation of corruption, bribery, misappropriation, and money laundering, as well as other acts like abuse of functions, trading in influence, and illicit enrichment. However, the proposal is innovative in that it seeks to go beyond the minimum requirements of UNCAC to prevent and combat corruption.
Such a perspective taken by the proposed new Directive is in line with the most innovative legal research approaches in the area of anti-corruption, which challenge the traditional understanding of corruption, which is merely focused on bribery.
Recent legal research has shown that corruption is not limited to just bribery, but also includes other pervasive and harmful corrupt practices that involve, for example, asymmetric exchanges of favors or unethical lobbying practices, which are not properly investigated and criminalized. In line with such an approach, the proposed new Directive aims to expand the coverage to some of these relevant corrupt practices.
See, for instance, the recently published article titled "Beyond Bribery: Exploring the Intimate Interconnections between Corruption and Tax Crimes" authored by Prof. Diane Ring and Dr. Costantino Grasso within the Special Issue "Tax Evasion, Corruption and the Distortion of Justice", which demonstrate how the interconnections between corruption and tax buses highlight how the current legal definitions of corruption and tax crime can be insufficient to capture the most severe cases of corrupt activities and tax abuses. For a synopsis of the article see: www.corporatecrime.co.uk/post/beyond-bribery-overview
Download the full text of the 2023/0135 (COD) Proposal for a Directive of the European Parliament and the Council on combating corruption:
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